In an instant, Marshall stood the Republicans’ argument on its head. Rather than asserting the president’s power, he was asserting the president’s duty. Under the Constitution, the president had no right to refuse to execute a treaty that the Senate had ordained. “The treaty stipulating that a murderer shall be delivered up to justice is as obligatory as an act of Congress making the same declaration.” Since only the president can communicate with foreign governments and negotiate treaties, it is proper to entrust him with carrying out obligations owed to foreign sovereigns. The president had no inherent power to extradite absent a treaty, but he had no right to refuse to enforce the treaty either. In other words, the president, as the “sole organ” of foreign relations, acts as Congress’s agent.
Marshall won the argument with a strategic retreat by conceding the Republicans’ point that the president’s power was subordinate to congressional power. But by identifying the president as the sole organ of Congress’s foreign relations power, Marshall demonstrated that Adams had no option but to extradite the prisoner.
It was a stunning display of Marshall’s brilliance as an advocate. He had turned the Republicans’ argument against them and triumphed. When Marshall sat down, there was a long silence in the chamber. No one knew how to reply to Marshall’s carefully reasoned argument. House Republicans gathered around Majority Leader Gallatin, urging him to respond. Gallatin shook his head. From the back of the chamber, Polly overheard Gallatin say: “Answer it yourself. I think it unanswerable.” The resolution criticizing President Adams was soundly defeated sixty-one to thirty-five with both Federalists and Republicans voting against it.29
Marshall’s address would be remembered as among the greatest orations ever given in Congress, and his statement that the president is the “sole organ” of foreign relations powers has become enshrined in constitutional law.
* * *
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PHILADELPHIA’S SWAMPY SUMMER CLIMATE posed the risk of another outbreak of yellow fever. Even before Congress adjourned, Marshall had returned to Virginia to attend to some legal matters. He continued to practice law to supplement his congressional salary of six dollars per day while Congress was in session (about $120 today).30 On his way out of Philadelphia, he stopped at the War Department to make some inquiries on behalf of some of his friends. He ran into Secretary of War James McHenry, who greeted him coldly. Marshall was puzzled. He had done nothing to deserve such rudeness. A short time later, he ran into the chief clerk of the War Department, who congratulated Marshall on his appointment as secretary of war. Marshall was flabbergasted. He soon learned that Adams had fired McHenry, accusing him of secretly plotting to bring down his presidency.31 Adams had not bothered to tell Marshall that he was about to be nominated to the cabinet.
Marshall did not consider himself qualified for the job, and he wanted to return to the practice of law. He promptly wrote the president requesting that he withdraw his name from consideration, but before Adams could withdraw the nomination, Marshall’s confirmation sailed through the Senate. Despite the ease with which he was elevated to the position, Marshall refused to accept the commission.32
Only days after receiving Marshall’s refusal, President Adams fired Secretary of State Pickering, accusing him of acting as Hamilton’s handmaiden to undermine him. Adams loathed Hamilton, whom he disparaged as that “bastard son of a Scotch peddler.” And the sentiment was mutual. Hamilton, who worried that Adams could not win reelection, was quietly maneuvering to find another candidate to run on the Federalist ticket in lieu of Adams. Hamilton and the other war hawks in the Federalist Party wanted Adams to declare war on France, and they vehemently opposed the appointment of another diplomatic mission to France. Adams blamed Hamilton for Pickering’s belligerent attitude toward France and his opposition to sending a second peace mission to France.33 When Adams appointed a peace mission over his and most of the cabinet’s objections, Pickering went so far as to disclose to the British ambassador, Robert Liston, the secret diplomatic instructions given to the peace mission. These efforts to undermine the mission triggered Pickering’s firing.34
After firing Pickering, Adams nominated Marshall as secretary of state. By now, Marshall had already left town for Richmond and knew nothing about any of these machinations. President Adams once again sent Marshall’s nomination to the Senate without his consent, and the Senate unanimously confirmed him the following day, May 13, 1800. Marshall’s friend Charles Lee, the acting secretary of state, notified him by mail of his appointment.
Back in Richmond, Marshall felt deeply torn by this appointment. Unlike the positions he had been previously appointed to, the secretary of state was in effect the head of the cabinet with broad authority over the federal government. For a fortnight Marshall wrestled with the decision to accept his appointment. The job paid $3,500 (nearly $70,000 today), which would be enough to support his family and service his loans on the Fairfax property.35 Ever since Washington had persuaded him to run for Congress, Marshall had felt trapped: “I was given up as a lawyer, and considered generally as entirely a political man. I lost my business altogether, and perceived very clearly that I could not recover any portion of it without retiring from Congress. Even then I could not hope to regain the ground I had lost.” In addition to the loss of income, “the press teemed with so much falsehood, with such continued and irritating abuse of me” that he felt he must fight on. “I could not conquer a stubbornness of temper which determines a man to make head against and struggle with injustice.” He was prepared to run again for Congress if only to respond to his critics.36 On the other hand, joining the cabinet gave him a graceful exit from electoral politics, and since it was likely that Adams would lose the next election, he could return to Richmond in nine months anyway. He must have felt a certain twinge of satisfaction knowing how Jefferson would receive the news that his lowborn cousin had been appointed to his former cabinet post. He later admitted, “[T]he office was precisely that which I wished, and for which I had vanity enough to think myself fitted.”37
So, with equal parts vanity and ambivalence, Marshall set out not for Philadelphia but for the new capital still under construction. This time, he assured Polly, he would be gone for only nine months.
CHAPTER FIFTEEN
PRIVATEERS AND PIRATES
The coach took three days to travel from Richmond to the new capital of Washington City. The trip was hot and dusty along badly marked roads that cut through thick forests and swamps. Marshall happened to share the coach with Supreme Court Justice Samuel Chase, who had been in Richmond to preside over the trial of James Callender for seditious libel. Callender, who was in the employ of Vice President Jefferson, had been found guilty of violating the Sedition Act for criticizing President Adams in his pamphlet The Prospect Before Us. Chase was a tough High Federalist judge with a reputation for speaking his mind even when it was inopportune.1
When the coach reached the capital on June 8, 1800, there was little to see: a few hills surrounded by a mosquito-infested swamp, dirt roads lined by drainage ditches, and some scattered buildings still under construction, including the President’s House and the north side of the Capitol. Fields were dotted with tree stumps, brick kilns, outhouses, and trash. Pigs and cows wandered about, seemingly indifferent to the metropolis rising around them. Capitol Hill was bare except for a few shabby boardinghouses, a tailor shop, and a grocery. Washington City had a sprinkling of wood-framed houses that needed repairs, two taverns for travelers, and a cluster of slave quarters. There were no churches, theaters, or industry. When the wind shifted, a terrible smell like death rose from the canal: You had to hold your handkerchief to your nose. It was a conceit to call it a city.2
Marshall checked into Tunnicliff’s, a modest tavern where President Adams and the new secretary of war, Samuel Dexter, were also staying. None of these men had seen the capital before, and they had to disguise their disappointment. Across from the tavern, they cou
ld see an army of slaves straining to complete the Senate’s half of the Capitol before Congress convened in November. (They had not yet begun construction of the House of Representatives.) Everything was delayed, over budget, and underfunded. What began with a grand classical design by the French architect Pierre L’Enfant was emerging from this fetid swamp as Washington’s folly.3
President Adams sat down with Marshall in the tavern and laid out his principal areas of concern for the coming months. First, there was the continuing Quasi-War with France. Months earlier, Adams had appointed William Vans Murray, the U.S. envoy to The Hague, as the new ambassador to France. Murray’s appointment was fiercely opposed by the war hawks in the Federalist Party, including Hamilton, who regarded him as soft on France.4 Adams hoped that Murray’s appointment would assuage the French and bring an end to the Quasi-War. The president had appointed two other envoys to France in November 1799—Chief Justice Oliver Ellsworth and North Carolina Governor William Davie—to join Murray’s negotiations. Since their arrival, Napoleon Bonaparte had seized power in France as first consul. No one could be sure what Bonaparte intended. Adams feared that time for negotiation was running out, and he faced increased pressure to declare war on France if a settlement was not reached quickly.
Second, the president wanted to resolve outstanding issues with Britain. The British were still angry with the Americans for not honoring their debts to British creditors. Jay’s Treaty had guaranteed the rights of British creditors to receive full payment, but U.S. courts had refused to enforce these debts. As a result, the British continued to seize U.S. vessels. Adams wanted a settlement.5
Third, the president was worried about the Barbary powers—Morocco, Algiers, Tunis, and Tripoli. The Barbary States and their privateers were constantly threatening U.S. ships in the Mediterranean by demanding tribute for the right to navigate in their sea. Some means had to be found to accommodate these states and allow Americans to trade freely in the region.6
Relations with Spain were also tense. In violation of a 1790 treaty with the United States, the Spanish permitted French warships to operate in their ports against U.S. ships and French tribunals in Spanish territory to issue prize awards against U.S. flagged vessels. France, Britain, Spain, and the Barbary powers were all threatening U.S. commerce. The president was relying on Marshall to resolve these threats without plunging the country into a larger war.
The president informed Marshall that he was leaving Washington at once to return to his home in Quincy, Massachusetts. The first lady had no desire to spend a blistering summer in an unfinished house adjoining an infectious swamp. Therefore, Marshall would be responsible for overseeing the federal government and the completion of the capital city before Congress arrived in November 1800.7
John Marshall took the administrative reins of government at an extraordinary time. Only three men had held the office of secretary of state before him, and by coincidence, two of them were his second cousins, Edmund Randolph and Thomas Jefferson. None of these men held as much authority as Marshall now exercised; none had greater support from their chief executive; and none faced greater challenges. At least for the moment, Marshall’s authority was more like a Roman consul’s than an untested cabinet secretary’s.
The State Department was the executive branch’s largest and most important department. It was not merely responsible for overseeing the diplomatic corps, which consisted of five ambassadors and sixteen part-time unpaid consuls. Virtually everything that the federal government did domestically and overseas, other than collecting taxes and supervising the small army and navy, was performed by the State Department. In addition to passports, State issued patents, copyrights, and land patents. State even oversaw the justice system. (At the time, the attorney general was merely a legal adviser to the president.) The department managed the census, ran the mint in Philadelphia, supervised U.S. territories, delivered commissions of federal appointments, and published government documents. All this was accomplished on a budget of $15,000 (around $300,000 today)—just enough to cover salaries, firewood, and stationery.8
The district commissioners responsible for constructing the capital would report daily to Marshall with details about street construction and the progress on government buildings. Marshall was charged with overseeing the completion of the President’s House before Mrs. Adams arrived in November of 1800.9 In the original city plan, L’Enfant had imagined a vast presidential palace on the scale of European royalty. But President Washington instructed the architect, James Hoban, to reduce the size of the house to one-fifth of L’Enfant’s original plan. Now the presidential palace looked like nothing more than a large plantation house surrounded by a plain rail fence.
In addition to his official duties running the State Department, the executive branch, and the completion of the city, Marshall was the de facto leader of the Federalist Party in Adams’s absence. Facing a strong challenge from Jefferson, the Federalists were badly splintered between High Federalists, who refused to compromise with the Republicans, and moderate Federalists like Marshall.
Marshall moved into a temporary office for the summer in the Treasury Building, a two-story Federal-style brick building next door to the President’s House. Treasury was the only completed government building, and it housed the entire executive branch—126 officials and staff. The State Department included a chief clerk, seven assistants, and one messenger, and all nine of them plus Marshall squeezed into two small offices. Between the sultry weather and the pervasive odor of fresh paint, they had to leave the windows open all summer. While that may have helped with the occasional breeze, the malevolent swamp air filled their lungs while fat flies buzzed maddeningly around their heads. They could also hear the constant pounding of nails from the President’s House that reminded them that their capital was a work in progress. In September 1800, the State Department moved into a newly completed three-story brick row house on the north side of Pennsylvania Avenue between Twenty-First and Twenty-Second Streets, a few blocks west of the President’s House. It took forty-two cartloads to move all the department’s furniture, records, books, and paraphernalia.10
On his first day as secretary of state, the most pressing issue on Marshall’s desk was a note from Rufus King, the U.S. ambassador to London, concerning the debt owed to Britain. Article 6 of Jay’s Treaty provided that in the event that U.S. courts refused to enforce debts owed to British creditors, the creditors could file claims against the U.S. government with a joint arbitral commission. The commission, however, was unable to agree on a procedure for judging claims. As long as British creditors’ rights were denied, the British government threatened to continue its attacks on U.S. ships and its occupation of forts along the Canadian border.
Marshall instructed King to inform Lord Grenville, the British foreign secretary, that British creditors “meet with no obstructions either of law or fact which are not common to every description of creditors.” Marshall cannot have believed that. He himself had spent much of his career successfully defending U.S. debtors from British creditors. He knew better than anyone that Virginia courts disfavored British claimants. Yet, he continued, “[o]ur Judges are even liberal in their construction of the 4th Article of the treaty of Peace, and are believed . . . to have manifested no sort of partiality for the debtors.”11 The United States was already engaged in the Quasi-War with France; it could hardly afford a second war. Almost any resolution would be preferable.12 Marshall told King to reach an agreement with Lord Grenville to amend the commission’s procedures and appoint a new commission.13
Lord Grenville wanted the U.S. government to make a lump-sum payment to Britain for all the outstanding debts.14 Marshall worried how that might look to France. A lump-sum payment was precisely the kind of foreign assistance the French Directory had sought and that Marshall had opposed in his negotiations with Talleyrand.15 Would it now appear hypocritical for Marshall to agree to pay Britain to stop harassing U.S. ships? He wr
ote to President Adams for instructions. Adams thought that the two situations were distinguishable: France wanted a loan to make war on Britain; Britain needed to settle the legitimate claims of private creditors. The United States had already committed itself in Article 6 of Jay’s Treaty to pay legitimate creditors, and it was only a question of how. The real problem was agreeing on the amount due.16
Marshall agreed that the United States would be better off negotiating a lump-sum settlement than leaving it to the commission to decide. If the British creditors were unhappy with the amount of their award from the U.S. government, they could still go after individual debtors for the difference.17 President Adams hoped that the British would settle for something less than one million pounds sterling (roughly one hundred million dollars today).18
Marshall cautioned Ambassador King that reaching agreement on an appropriate number may be complicated by the “notoriously unfounded” and “extravagant claims” filed by some British creditors.19 He instructed King that the United States was willing to go as high as $2.5 million (nearly $50 million today)—considerably less than Marshall or Adams thought the British claims were actually worth.20 In fact, it took another eighteen months of negotiation for the parties to agree to a lump-sum payment of six hundred thousand pounds sterling (about seventy-five million dollars today)—far less than the president expected to pay.21
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